[JURIST] The Pennsylvania Department of Health [official website] on Tuesday filed a petition [text, PDF] in the Commonwealth Court seeking to stop the Montgomery County Register of Wills [official websites] from issuing marriage licenses to same-sex couples. D Bruce Hanes of Montgomery County was allegedly acting under the guidance of Attorney General Kathleen Kane [official website], who instructed him that the Pennsylvania Marriage Law was no longer constitutional under the Supreme Court's holding in United States v. Windsor [JURIST reports]. Hanes announced his intentions to issue marriage licenses to same-sex couples on July 25 and was initially lauded for his decision [press release]. The Department of Health, which monitors marriage statistics for disease control purposes, disagreed, arguing:
No public pronouncement of an executive official ... declaring his or her legal opinion that a law is unconstitutional relieves a public official from his mandatory duty to comply with the law. ... Absent a controlling opinion of a court of competent jurisdiction an administrative official such as a Clerk lacks lacks the power or discretion not to perform his duties.Also on Tuesday the Governor's Office of General Counsel [official website] wrote [text, PDF] to the attorney general in defense of the Pennsylvania statute, arguing that Windsor does not strike down the state's marriage law, but just the federal Defense of Marriage Act (DOMA). A lawsuit [JURIST report] seeking same-sex marriage rights in Pennsylvania is currently pending.
Since the DOMA ruling [text, PDF] in June, courts across the country have been citing the decision [JURIST news archive]. In Michigan a federal judge blocked the state's ban [JURIST report] on domestic partner benefits for employees who work for public schools or local governments. Last week a judge for the US District Court for the Southern District of Ohio [official website] ruled [JURIST report] in favor of two men seeking recognition of their out-of-state same-sex marriage. Ohio law prohibits same-sex marriage but recognizes marriages solemnized outside of the state. James Obergefell and his partner, John Arthur, who suffers from a terminal illness, married legally in Maryland earlier this month and returned to Ohio where they have resided for nearly 20 years. Arthur sought to include Obergefell as his surviving spouse on his death certificate.